ACADEMIC FREEDOM AFTER EDWARDS
David K. DeWolf∗
I.
II.
A.
B.
C.
D.
III.
A.
B.
C.
IV.
A.
B.
C.
V.
∗
INTRODUCTION
458
EDWARDS V. AGUILLARD
The District Court’s Opinion
The Fifth Circuit Panel
The Fifth Circuit En Banc
The Supreme Court’s Opinion
460
461
462
463
464
PURSUING ALTERNATIVES TO DARWINISM BY AVOIDING
EDWARDS’S PITFALLS
469
Avoiding Improper Motivation
1. The Significance of Motive in Edwards
2. Confusing Purpose and Motivation
3. Does Religious Motivation Trump
Secular Purpose?
4. Worldview Compatibility
Avoiding Limitations on the Teaching of Evolution
Academic Freedom in the Definition of Science
1. The Demarcation Issue
2. A Non-Biblical Approach
3. A Majoritarian Approach
469
469
471
472
477
478
480
480
482
483
THE FIRST AMENDMENT RIGHTS OF TEACHERS
The Wrong Approach:
Refusing to Teach Evolution
The Wrong Approach Again:
Usurping Curricular Choice
The Right Approach:
Teaching the Controversy
484
CONCLUSION
491
485
486
487
Professor of Law, Gonzaga University School of Law. B.A., 1971, Stanford
University; J.D., 1979, Yale Law School. The author gratefully acknowledges the
contribution of Mark Edward Deforrest to this article.
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I. INTRODUCTION
When the ACLU1 staged the trial of John Scopes in 1920, its
purpose was to suggest in the public mind a contrast between an
educator fearlessly searching for truth2 and a rigid orthodoxy afraid of
any challenge.3 The Scopes case has often been cited as an example of a
case in which the battle was lost but the war was won.4 Those who
accept and those who reject the theory of evolution5 differ sharply over
what should be taught in the public schools, but almost everyone6
1
The role of the ACLU in using Scopes as a test case is described in EDWARD J.
LARSON, SUMMER FOR THE GODS (1997), reviewed in Don Herzog, Liberalism Stumbles in
Tennessee, 96 MICH. L. REV. 1898 (1998).
2
See Scopes v. State, 289 S.W. 363, 369 Tenn. (1927). In the words of an expert
witness for the defense,
The theory of evolution is altogether essential to the teaching of biology and
its kindred sciences. To deny the teacher of biology the use of this most
fundamental generalization of his science would make his teaching as chaotic
as an attempt to teach astronomy without the law of gravitation or physics
without assuming the existence of the ether.
Id.
3
The majority of the court avoided deciding the case on the merits of whether the
theory of evolution (or its rivals) was actually true. Instead, it decided that the choice of
what to teach was left to the sound discretion of the legislature and the school board and
that Scopes, as an employee, had no right to make his own curricular decisions. Id. at 364.
The plaintiff in error was a teacher in the public schools of Rhea county. He
was an employee of the state of Tennessee or of a municipal agency of the state.
He was under contract with the state to work in an institution of the state. He
had no right or privilege to serve the state except upon such terms as the state
prescribed.
Id.
4
Tony Perkins, Covenant Marriage: A Legislator’s Perspective, 12 REGENT U. L.
REV. 27 (1999-2000).
5
Throughout this article, I will refer to the theory of evolution as “Darwinism” to
distinguish the particular feature of evolution that asserts the adequacy of a naturalistic
explanation for the origin of intelligent life. See David K. DeWolf et al., Teaching the
Origins Controversy: Science, or Religion, or Speech?, 2000 UTAH L. REV. 39, 41 n.4 (2000).
6
The principle of “viewpoint neutrality” has a distinguished pedigree:
As early as 1872, this Court said: “The law knows no heresy, and is
committed to the support of no dogma, the establishment of no sect.” This has
been the interpretation of the great First Amendment which this Court has
applied in the many and subtle problems which the ferment of our national life
has presented for decision within the Amendment’s broad command.
Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (quoting Watson v. Jones, 80 U.S. (13 Wall.)
679 (1871)) (citation omitted).
On the other hand, “viewpoint neutrality” has not enjoyed universal approbation. For
example, one of the justices concurring in the Tennessee Supreme Court’s decision in
Scopes assumed that the legislature had no obligation to treat all theories with equal
dignity. “That the Legislature may prohibit the teaching of the future citizens and office
holders to the state a theory which denies the Divine Creator will hardly be denied.”
Scopes, 289 S.W. at 369 (Chambliss, J., concurring).
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affirms the value of academic freedom as opposed to the use of the public
schools as a vehicle of indoctrination.7 Thus, when the Louisiana
legislature enacted the Balanced Treatment Act in 1981,8 its supporters
thought that they were on firm ground by prescribing that the teaching
of evolution be accompanied by a presentation of creation-science.
However, not everyone saw it that way. Indeed, by the time the case
reached the United States Supreme Court,9 a district court judge had
already concluded that the Balanced Treatment Act was anything but
balanced and, far from promoting academic freedom, was an
unconstitutional advancement of religion. In his dissent, Justice Scalia
scolded the majority for doing the very thing that it accused the Act’s
sponsors of perpetrating: a “Scopes-in-reverse.”10
Despite the strong disagreements in this particular case, there was
nothing in the majority or concurring opinions that would suggest any
repudiation of the principle that academic freedom should apply to the
question of how to teach the origins controversy.11 Instead, the debate
was over how that principle should be applied to this delicate area.
Depending upon how broadly or how narrowly one reads different
portions of the Edwards opinion, different conclusions might be drawn
as to what school board policies would be consistent or inconsistent with
its strictures. For instance, the Court states that one might legitimately
“teach[] a variety of scientific theories about the origins of humankind to
schoolchildren . . . with the clear secular intent of enhancing the
effectiveness of science instruction.”12 Thus, one might expect
subsequent case law to provide greater clarity for those charged with the
responsibility of adopting curriculum standards and classroom policies.
Unfortunately, such is not the case. The case law on how best to teach
the controversy is scant, and the only guidance comes from cases that
are not directly on point. Thus, the purpose of this article is twofold:
7
“[T]he First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over
the classroom.’” Epperson, 393 U.S. at 105 (quoting Keyishian v. Bd. of Regents, 385 U.S.
589, 603 (1967)).
8
LA. REV. STAT. ANN. §§ 17.286.1-.7 (West 1982).
9
Edwards v. Aguillard, 482 U.S. 578 (1987).
10 Id. at 634 (Scalia, J., dissenting).
11 I will use the term “origins controversy” to refer to the scientific debate over the
origin of complexity—the appearance of design—in living things. While Darwin himself
never claimed to explain the origin of the first life, he claimed that natural selection
possessed the ability to transform simple forms of life into much more complex and
ultimately intelligent organisms. Thus, the scientific debate, whether it is concerning the
first life or the origin of intelligence, centers around whether intelligence can be derived
from unintelligent processes or whether it is more reasonable to conclude that an
intelligent end was probably the result of an intelligent cause. See generally DeWolf et al.,
supra note 5.
12 Edwards, 482 U.S. at 594.
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first, to provide an explanation of those cases that might shed light on
the question of how best to teach the controversy, and second, to suggest
an approach, consistent with Edwards, that makes sense of the principle
of academic freedom. Before doing so, however, the Edwards case must
be examined.
II. EDWARDS V. AGUILLARD
In 1981, the Louisiana legislature amended their state’s General
School Law to include a new section dealing with the teaching of biology
in the elementary and secondary public schools.13 The material added to
the General School Law was entitled the Balanced Treatment for
Creation-Science and Evolution-Science in Public School Instruction.14
Known generally as the Balanced Treatment Act, the new provisions
affected how differing theories on the origin of life could be presented in
the Louisiana public schools. The Act’s stated purpose was to protect
academic freedom by requiring Louisiana public schools to provide a
balanced treatment of both creation-science and evolution-science.15
While no public school was required to teach about the origin of life, if a
school chose to present either the creation-science approach or the
evolution-science approach to the origin of life, then the school had to
present the other theory as well. The statute further protected teachers
who chose to be creation-scientists or who presented scientific data that
points to creationism. A curriculum guide and research services were to
be developed by the public schools and provided to assist teachers in
presenting creation-science to their classes. According to the law, only
creation-scientists were to be appointed to the panel charged with
providing research services.16
The statute was passed by a comfortable margin by the Louisiana
legislature and signed into law by Governor Edward Edwards.17 The law
was challenged, however, by a group comprised of concerned parents
whose children attended Louisiana public schools, Louisiana public
school teachers, and various religious leaders who contended that the
Balanced Treatment Act violated the Establishment Clause of the First
Amendment.18 The groups maintained that the Act was unconstitutional
for two reasons: first, it violated the Establishment Clause by
prohibiting the teaching of the theory of evolution; second, the Act
furthered an impermissible purpose by advancing the specific religious
13
14
15
16
17
18
Aguillard v. Treen, 634 F. Supp. 426 (E.D. La. 1985).
Id.
Id at 429.
Id. at 430.
Edwards, 482 U.S. at 610 (Scalia, J., dissenting).
Aguillard, 634 F. Supp. at 427.
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doctrine of creationism.19 The group also contended that the Act violated
the Louisiana Constitution’s provisions regulating the public school
curriculum.20
A. The District Court’s Opinion
The plaintiffs’ case was first heard by Judge Duplantier of the
United States District Court for the Eastern District of Louisiana.21 In
the interests of federalism, the district court requested that the Fifth
Circuit Court of Appeals certify the issue of the Louisiana Constitution’s
curriculum provisions to the Louisiana Supreme Court. The Fifth Circuit
did so, and the state supreme court found that the Balanced Treatment
Act was constitutional under state law.22 After the Louisiana court
issued its finding, the district court was faced with a plaintiffs’ motion
seeking summary judgment regarding the First Amendment issues
involved in the case.23 The district court granted the motion for summary
judgment, finding that the Balanced Treatment Act violated the First
Amendment’s provisions guaranteeing the separation of church and
state. The district court found that the teaching of creation-science was
inherently religious because it implies a divine creator.24 The court found
that belief in a supreme being who would function as a creator was
generally considered to be a religious tenet, and hence the teaching of
creationism was, in effect, teaching a religious belief.25
The district court did not end its examination of the
constitutionality of the Balanced Treatment Act there. The court also
examined the Louisiana Legislature’s prohibition on the teaching of
evolution absent the teaching of creation-science. The court found that
there could be no secular reason for such a prohibition, and that the
State was therefore prohibited by the Establishment Clause from
prohibiting the teaching of evolution in its public schools.26 The court
further found that since the State was powerless to prevent the teaching
of evolution, it could not require that evolution only be taught if creationscience was taught alongside it.27 The court found that the sole reason
why the legislature would mandate such a balanced treatment approach
19
20
21
22
23
24
25
26
27
Id.
Aguillard v. Treen, 440 So. 2d 704, 706 (La. 1983).
Aguillard, 634 F. Supp. at 426.
Aguillard, 440 So. 2d at 710.
Aguillard, 634 F. Supp. at 427.
Id. at 428.
Id.
Id.
Id.
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to the subject matter was to comport with a religious doctrine. Such a
reason, the court ruled, violated the Establishment Clause.28
The district court left a window open for the teaching of alternatives
to Darwinism in its decision. In dicta, the court stated that it would be
possible for a public school curriculum to provide balanced treatment to
both evolution and creationism without advocating the latter. A properly
worded statute, the court reasoned, could objectively expose students to
the theory of creation-science, as part of a secular program to educate
public school pupils about the origin of life. The problem with the
Louisiana statute was that it would promote the beliefs of some religions
at the expense of others and thereby violate the fundamental First
Amendment principle that a state must be neutral in its treatment of
religions.29
B. The Fifth Circuit Panel
Louisiana appealed the district court’s ruling before a panel of the
Fifth Circuit Court of Appeals.30 In a decision written by Judge E. Grady
Jolly, the appeals court upheld the district court’s ruling and found that
creationism was a religious belief irrespective of whether it is fully
supported by scientific evidence.31 Thus, Louisiana’s Balanced
Treatment Act lacked a secular purpose.
In its examination of the purpose behind the Balanced Treatment
Act, the Fifth Circuit focused heavily on the religious implications of
creation-science, particularly in light of the historic controversy over
religious and non-religious explanations for the origin and existence of
life.32 While it did not deny that the underpinnings of creation-science
might have some scientific support, the court perceived an abiding
hostility on the part of religionists to the teaching of evolution. The court
found that the purported secular purpose of the Louisiana law—to
provide academic freedom to teachers—was “not sufficient . . . to avoid
conflict with the first amendment.”33
Despite the Fifth Circuit’s clearly negative view of Louisiana’s
Balanced Treatment Act, the appeals court did not entirely foreclose the
teaching of alternatives to Darwinism in the public schools. The court
specifically noted that it was not attempting to pass judgment on the
merits of creationism as either a theological or scientific belief. Rather,
the court emphasized that its ruling was based on the First
28
29
30
31
32
33
Id.
Id. at 429.
Aguillard v. Edwards, 765 F.2d 1251 (5th Cir. 1985).
Id. at 1253.
Id.
Id. at 1256.
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Amendment’s requirement that no law favor any specific religion or
religious belief.34 More important than this, however, was a direct
statement by the court that there was no judicial means for preventing
the voluntary presentation of scientific evidence which coincides or is
harmonious with the tenets of some or all religions.35
C. The Fifth Circuit En Banc
After the appellate court panel affirmed the District Court ruling,
Louisiana sought review of the decision en banc by the Fifth Circuit.36
The petition was denied, but a significant number of the judges of the
Fifth Circuit dissented.
Like the district court, Judge Gee began his dissenting opinion by
recalling the Scopes case.37 He then examined the text of the Louisiana
Balanced Treatment Act and concluded that far from attempting to stifle
academic discourse, the real purpose of the Act was to ensure that both
the theory of evolution and the theory of creation were given equal
time.38 Judge Gee also found that, rather than attempting to discredit
either creationism or evolution, the Act merely sought to prevent either
theory from being misrepresented as fact.39 While Judge Gee conceded,
for purposes of argument, that many of the legislators who had
supported the Balanced Treatment Act did so out of religious
motivations, he noted that laws which had previously been upheld by the
Fifth Circuit, including another Louisiana law closing some businesses
on Sunday, may well have been motivated by religious conviction, yet
still survived scrutiny under the Establishment Clause.40 He noted that
the panel’s holding had the effect of preventing states from requiring
that the truth be presented to students in the public school system. After
this case, the dissent observed, it does not suffice to teach the truth; one
must also teach it with the approved motive.41 The effect of such a rule
was to put the Constitution in the perverse position of prohibiting the
truth from being conveyed through the curriculum of the public
schools.42
34
35
36
37
38
39
40
41
42
Id. at 1258.
Id. at 1257 (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)).
Aguillard v. Edwards, 778 F.2d 225 (5th Cir. 1985).
Id. at 226 (Gee, J., dissenting).
Id. (Gee, J., dissenting).
Id. (Gee, J., dissenting).
Id. at 227 (Gee, J., dissenting).
Id. at 228 (Gee, J., dissenting).
Id. (Gee, J., dissenting).
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D. The Supreme Court’s Opinion
After the Fifth Circuit Court of Appeals refused to rehear the case
en banc, the State of Louisiana petitioned for Supreme Court review.
The Court granted certiorari, and by a 7-2 ruling upheld both the lower
court rulings that found the Balanced Treatment Act unconstitutional.43
Justice Brennan wrote the majority opinion, joined by Justices Marshall,
Blackmun, Powell, and Stevens. Justice Powell wrote a concurring
opinion, joined by Justice O’Connor. Justice White wrote an opinion
concurring only in the judgment. Justice Scalia wrote a strong dissent in
which he was joined by Chief Justice Rehnquist.
1. The Majority Opinion
The Court’s opinion began with an overview of the Louisiana law,
which Brennan tellingly characterized as “[t]he Creationism Act.”44 The
Court then provided a brief overview of the constitutional standards
which it would employ in deciding the case: the First Amendment’s
prohibition on the establishment of religion and the oft-criticized Lemon
test.45 The Court explained that the Louisiana case occurred within the
special context of public elementary and secondary education. Because
parents entrust their children to the public schools and public school
attendance is involuntary, the state has great coercive power over public
school students. In light of this coercive power, the Court emphasized
that it has been particularly vigilant in monitoring public school
compliance with the Establishment Clause.46 The Court also noted that
it was concerned that divisive forces be kept out of the public schools.47
Using the three prongs of the Lemon test as its conceptual
framework, the Court evaluated the Louisiana law under the purpose
prong of that test. Under the purpose prong, the Establishment Clause is
violated if the actual purpose of a government action is to endorse or
disapprove of religion.48 While the Court acknowledged that the Act’s
stated purpose was to protect and foster academic freedom, it would not
be bound to accept that purpose if indeed it were merely a sham.49 The
Court explicitly held that the Act was not designed to meet that goal, but
instead was designed “to restructure the science curriculum to conform
to a particular religious viewpoint.”50
43
44
45
46
47
48
49
50
Edwards v. Aguillard, 482 U.S. 578 (1987).
Id. at 580.
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Edwards, 482 U.S. at 583.
Id. at 584.
Id. at 585.
Id. at 586-87.
Id. at 593.
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In evaluating the Act’s purpose, the Court paid heavy attention to
statements made by the Act’s chief legislative sponsor, state Senator Bill
Keith. Senator Keith made several statements on the record indicating
that his intent was to limit what was taught in the public schools of
Louisiana, an intention that the Court believed ran counter to the notion
of academic freedom that the Act claimed to protect. The Court held that
the Act failed to provide teachers with any additional flexibility in
teaching scientific theories to their students and that it created a
discriminatory preference in favor of teaching creationism.51 This
discriminatory preference was demonstrated, in the Court’s view, by the
Act’s provisions requiring the development of curriculum guides on
creation-science, the exclusive mandate of resource services for creationscience, and the requirement that only creation scientists serve on the
resource services panel. In light of these facts, the Court found that the
Act’s stated purpose of protecting academic freedom simply was not
tenable.52
After discarding the validity of the stated purpose of the Balanced
Treatment Act, the Court went on to examine what it found to be the
real purpose of the law: to foster religion. The Court found that there
was a historic and contemporaneous link between the theory of evolution
and certain religious groups.53 It drew a direct parallel between the
instant case and earlier ones like Epperson v. Arkansas,54 Stone v.
Graham,55 and Abington School District v. Schempp.56 In those cases, the
Court examined religious purposes, which may have underlayed
government actions that had professed secular goals. The Court found
that the historic antagonism held by some religious groups toward the
theory of evolution was the real motivating factor behind the Louisiana
Legislature’s decision to enact the Balanced Treatment Act. The Court
further found that the primary purpose of the Act was to alter the
curriculum of the public schools so that a persuasive advantage would be
provided to scientific creationism.57 The Court supported this reading of
the Act by reciting several statements in the legislative history made by
Senator Keith. It also noted that out of all the scientific theories being
taught in Louisiana public schools, the legislature chose to target one,
which had been opposed by certain religious groups.58 Based on these
factors, the Court concluded that the Balanced Treatment Act was
51
52
53
54
55
56
57
58
Id. at 588.
Id. at 584.
Id. at 591.
393 U.S. 97 (1968).
449 U.S. 39 (1980).
374 U.S. 203 (1963).
Id. at 593.
Id.
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designed to restructure the science curriculum to conform to a particular
religious viewpoint in violation of the Establishment Clause.59
After holding the Louisiana law unconstitutional, the Court
concluded its discussion of the constitutional issues in the case by
emphasizing that its ruling did not prevent the states from requiring
schools to include scientific critiques of prevailing scientific theories. The
Court noted that school children could be taught a variety of scientific
theories about the origins of life.60 The Court was careful to add,
however, that exposure to these multiple theories must be done with the
clear secular intent of enhancing the effectiveness of science
instruction61 rather than as an attempt to further religious doctrine.
2. Justice Powell’s Concurrence
Justice Powell wrote a lengthy and analytically complex
concurrence in which he was joined by Justice O’Connor.62 He set out the
two-fold purpose of his concurrence forthrightly at its beginning: to
comment on the legislative history of the Louisiana act and to emphasize
that the Court’s decision should not be read to undermine or reduce the
discretion of local and state educational officials to determine the
curriculum of the public schools.63 As to his first point, Justice Powell
agreed with the main holding of the Court’s opinion: the Balanced
Treatment Act did not have a secular purpose, it failed to meet the
secular-purpose prong of the Lemon test; and it therefore violated the
Establishment Clause of the First Amendment. But, Justice Powell also
made it clear that simply because a statute is enacted out of religious
purpose is not enough under the Lemon test to invalidate the law. In
order to be constitutionally illegitimate, the religious purpose must
predominate.64 After reviewing the legislative history of the Act, Powell
concluded that a religious purpose did indeed predominate, so much so
that the Justice found that religious belief was the reason for the Act’s
existence.65 Powell reasoned that while the states certainly had the right
to protect academic freedom in the public school classroom, they did not
have the right to do so at the expense of the Establishment Clause.
As for his second point, Justice Powell steadfastly insisted that local
and state education officials still have the authority to determine the
curriculum used in public education, even if that curriculum “happens to
59
60
61
62
63
64
65
Id.
Id. at 594.
Id.
Id. at 597 (Powell, J., concurring).
Id.
Id. at 599.
Id. at 603.
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457
coincide or harmonize with the tenets of some or all religions.”66 As long
as the purpose of the government action is not clearly religious,
educational officials need not fear constant attacks against such
curriculum on the basis of the Establishment Clause. In particular,
Justice Powell noted that it would be constitutionally permissible for
pupils in public schools to be taught about America’s religious heritage,
including the “Founding Fathers’ religious beliefs and how the beliefs
affected the attitudes of the times and the structure of our
government.”67 He also saw no constitutional problem with teaching
comparative religion in public school or using religious documents,
including the Bible, as tools in public education so long as they were not
used to advance a particular religious belief.68
3. Justice White’s Concurrence
“[T]his is not a difficult case,” wrote Justice White.69 He viewed the
Act’s requirement that creationism be taught alongside evolution
whenever the latter theory was presented to students as the critical
component of the Act. This requirement conditioned the teaching of the
theory of evolution on the teaching of a religious doctrine.70 In light of
this requirement, the lower courts properly discerned that the purpose of
the Act was to advance religion, thereby violating the first prong of the
Lemon test’s reading of the Establishment Clause.71
While indicating that he might have disagreed, as an original
matter, with the lower courts’ rulings on the constitutionality of the Act,
White still upheld the lower courts’ decisions. He did so on the grounds
that the Supreme Court has a strong policy of deferring to the holdings
of district courts and courts of appeal when interpreting state statutes
for purposes of constitutional review.72 This policy of deference,
according to White, is based on the belief that district courts and courts
of appeals are better schooled in, and are more able to interpret, the laws
of their respective States.73 White concluded by stating that the only way
the Court could avoid overturning the Balanced Treatment Act was to
reconsider the Court’s own underlying jurisprudence regarding the
Establishment Clause. Since such a reconsideration was not undertaken
66
67
68
69
70
71
72
73
Id. at 605 (quoting Harris v. McRae, 448 U.S. 297, 319 (1980)).
Id. at 606-07.
Id. at 607-08.
Id. at 608 (White, J., concurring).
Id. at 609.
Id.
Id.
Id.
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by the Court, White felt that the Court was required to affirm the Fifth
Circuit ruling in the case.74
4. Justice Scalia’s Dissent
Justice Scalia, joined by Chief Justice Rehnquist, built his dissent
around what he perceived as three foundational errors in the Court’s
approach to the Balanced Treatment Act.75 First, Scalia attacked the
Court’s finding that the Act lacked a proper secular purpose as required
by the Lemon test. Arguing that the Court misapplied the purpose prong
of the Lemon test, Scalia strongly objected to the idea that the
Establishment Clause prohibited legislators from acting upon their
religious convictions.76 He also noted that, under established precedent,
it was improper to presume that a law is intended to advance religion
simply because the law coincides with, is harmonious with, or somehow
benefits religious belief.77 He also discussed three instances where the
Court had ruled that the government was either required or permitted to
advance religion. He closed his first objection to the Court’s opinion by
noting that the Court has historically been reluctant “to attribute
unconstitutional motives to the States.”78
Scalia’s second objection dealt with the Court’s reading of the
legislative history of the Act. He noted that there was nothing in the
history of the Act to indicate that Louisiana had passed the law in order
to comport with fundamentalist religious fervor.79 Scalia cited to
testimony provided before the Louisiana legislature, which gave
credence to the Act’s stated purpose of fostering academic freedom,
particularly in regards to origin of life issues. He noted that, while many
found creation-science intellectually unpersuasive, the proper inquiry for
the Court was not whether the legislature’s belief that enacting the law
would protect academic freedom was wise, but whether it was sincere.
Based on the record before the Court, Scalia found that the legislature
did act sincerely and that they had abundant reasons for believing that
academic freedom would be fostered and protected by the Balanced
Treatment Act. The Court’s opinion finding otherwise, Scalia was
convinced, was the result of a deliberate effort to misinterpret academic
freedom as set forth in the Act.80
74
75
76
77
78
79
80
Id. at 610.
Id. at 610 (Scalia, J., dissenting).
Id. at 615.
Id.
Id. at 618 (quoting Mueller v. Allen, 463 U.S. 388, 394 (1988)).
Id. at 619.
Id. at 627.
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459
Scalia’s third objection to the Court’s decision involved the practical
difficulty of ascertaining the exact motive or purpose of a legislative
enactment.81 Legislators are not always clear why they enact legislation,
and they may act from a multiplicity of motivating factors. Some of these
factors may be of constitutional import; others may be somewhat banal
by comparison. But in the end, it is probably impossible to ascertain the
sole purpose for which even a single legislator acts. Even if it was
ascertainable, how can the Court go about determining the intention of
the legislature as a whole? Oftentimes, legislators support the same bill
out of conflicting motivations or purposes; in such a case there may be no
motivation or purpose subscribed to by the majority. Because of these
concerns, Scalia argued, it would be more prudent for the Court to
dispose of the first prong of the Lemon test altogether.82
III. PURSUING ALTERNATIVES TO DARWINISM BY
AVOIDING EDWARDS’ PITFALLS
A. Avoiding Improper Motivation
1. The Significance of Motive in Edwards
It may be helpful to begin with an analogy. Suppose that a city
sanitation supervisor hired a staff of 30 garbage collectors, all of whom
were Seventh-Day Adventists. Disappointed applicants for those jobs
might suspect that an improper religious motivation played a role in the
selection of the successful candidates. In explaining her reasoning, the
sanitation supervisor might place into the record the sterling credentials
of the candidates and assert that they were the best qualified.
Nonetheless, a district court judge very well might conclude that there
had been a discriminatory religious motive and that the action of the
supervisor was therefore unconstitutional. If a judgment in favor of the
plaintiffs was affirmed on appeal, would anyone draw from the case the
conclusion that it is unconstitutional to appoint Seventh-Day Adventists
as city employees or even that these particular individuals should never
be hired? No, of course not. The proper conclusion would be that
appointments must be made on a religiously neutral basis.
Yet, it is easy to find commentators who draw from Edwards the
conclusion that it is unconstitutional to teach creationism alongside
evolution.83 To say that they are unjustified in doing so is not to deny
81
Id. at 636.
Id. at 640.
83 See Lisa D. Kirkpatrick, Note, Forgetting the Lessons of History: The Evolution of
Creationism and Current Trends to Restrict the Teaching of Evolution in Public Schools, 49
DRAKE L. REV. 125, 127-28 (2000).
82
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that the more minimalist position of Justice White84 is found in an
opinion that only concurs in the judgment, and presumably the majority
was saying something more expansive. On the other hand, the majority
stops far short of suggesting that the teaching of creationism itself is
objectionable. Instead, the majority repeatedly emphasizes that it is the
manner and motivation for requiring the teaching of creationism that
renders the legislation unconstitutional.85
2. Confusing Purpose and Motivation
In the first stage of the development of the evolution-creationism
controversy, the teaching of evolution was explicitly prohibited. In the second
stage, teaching evolution was allowed only when accompanied by the
presentation of the theory of creationism. The third and present stage attempts
to make an end-run around the Supreme Court’s clear pronouncement that
creationism has no place in public school science classrooms by keeping Darwin
out of the classroom.
Id. (footnotes omitted); see also Jay D. Wexler, Of Pandas, People, and the First
Amendment: The Constitutionality of Teaching Intelligent Design in the Public
Schools, 49 S TAN. L. REV. 439, 441 (1997) (“How can teaching creationism in the
public schools still be an issue despite the Supreme Court’s 1987 decision in Edwards
v. Aguillard striking down a Louisiana statute that required teachers to give equal
time to creationism and evolution?”).
84 Edwards, 482 U.S. at 609 (White, J., concurring) (stating that where a district
court judge has made findings, supported by competent evidence, that there was an
improper religious motive for a state action, higher courts should defer to such a finding
unless it is plainly erroneous).
85 “It is clear from the legislative history that the purpose of the legislative sponsor,
Senator Bill Keith, was to narrow the science curriculum.” Id. at 587.
Furthermore, the goal of basic “fairness” is hardly furthered by the Act’s
discriminatory preference for the teaching of creation science and against the
teaching of evolution. While requiring that curriculum guides be developed for
creation science, the Act says nothing of comparable guides for evolution.
Similarly, resource services are supplied for creation science but not for
evolution. Only “creation scientists” can serve on the panel that supplies the
resource services. The Act forbids school boards to discriminate against anyone
who “chooses to be a creation-scientist” or to teach “creationism,” but fails to
protect those who choose to teach evolution or any other non-creation science
theory, or who refuse to teach creation science.
Id. at 588 (citations omitted).
“[W]e need not be blind in this case to the legislature’s preeminent religious purpose
in enacting this statute.” Id. at 590. “The legislative history documents that the Act’s
primary purpose was to change the science curriculum of public schools in order to provide
persuasive advantage to a particular religious doctrine that rejects the factual basis of
evolution in its entirety.” Id. at 592. “In this case, the purpose of the Creationism Act was
to restructure the science curriculum to conform with a particular religious viewpoint.” Id.
at 593. “Because the primary purpose of the Creationism Act is to advance a particular
religious belief, the Act endorses religion in violation of the First Amendment.” Id.
“[B]ecause the primary purpose of the Creationism Act is to endorse a particular religious
doctrine, the Act furthers religion in violation of the Establishment Clause.” Id. at 594.
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One of the difficulties faced by those who wish to take advantage of
the “teach all scientific theories” encouragement of Edwards is that the
Court badly confused the requirement from Lemon that the legislation
have a secular purpose with the search for what motivates the action of
the legislative body. The distinction between motive and purpose is
elementary in criminal law.86 The question of whether a defendant is
guilty of homicide depends upon whether he acted with the purpose of
accomplishing a particular result, not whether his motives were
beneficent or malevolent.87 In a similar way, the question of secular
purpose must be distinguished from whether the secular purpose is itself
motivated by a desire to be re-elected, a general sense that an action
would advance the public welfare, or in obedience to an angelic visit.
While one of the main motivating factors for some Louisiana legislators
in promulgating the Balanced Treatment Act may have been religious, is
the presence of such religious motivation sufficient by itself to alter the
purpose of a legislative enactment?
In examining the Supreme Court’s pre- and post-Lemon
jurisprudence on this point, one finds that the Court has not viewed
religious motivation in the legislative arena as toxic per se. While a law
with a clear religious purpose would be unconstitutional under Lemon,
until Edwards, laws that might be motivated by religious conviction
were generally upheld. For example, in McGowan v. Maryland88 the
Supreme Court fashioned what would later become the purpose prong of
the Lemon test. In McGowan, the Court rejected the argument that a
Sunday closing law violated the Establishment Clause because its
purpose was to encourage church attendance. The Court held that laws
that coincided with the tenets of a particular religion or religion in
general could survive constitutional scrutiny, even if motivated by
religious belief, so long as there was a legitimate secular purpose to the
legislation. As long as laws serve secular purposes and meet secular
needs, the Court held, such laws may be harmonious with and motivated
by religious faith.89 For example, the Court noted that murder, adultery,
polygamy, theft, and fraud are all illegal and are also prohibited by the
Judeo-Christian religions. Such religious roots do not invalidate a law
86
Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of
Bias-Motivated Crimes, 93 MICH. L. REV. 320, 381 n.173 (1994). (“Motive can be
distinguished from purpose. Purpose concerns a person’s conscious object to engage in
certain conduct or to cause a certain result. See, e.g., MODEL PENAL CODE § 2.02(2)(a)(i)
(1962). Motive, on the other hand, concerns the cause that drives the action to further that
purpose.”).
87 See Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes
Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1.
88 366 U.S. 420, 442 (1961).
89 Id. at 442.
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automatically, so long as there are purely secular grounds to justify the
legislature’s actions. The Court found that the Sunday closing law had a
sufficient secular purpose, namely to provide the general population with
a day of rest to recover from the past week and to prepare for the coming
one, thus distinguishing between the legislation’s motivation (which may
be religious) from its purpose (which must be secular). 90
The Court’s failure in Edwards to observe this basic distinction is
disappointing. As Justice Scalia noted, courts have usually treated the
legislature’s announcement of its purposes with deference.91 In Lynch v.
Donnelly,92 the Court held that the statute’s purpose need not be
exclusively secular. In Wallace v. Jaffree,93 the Court stated that a
statute violates the Establishment Clause “if it is entirely motivated by a
purpose to advance religion.”94 Although “[n]o legislative recitation of a
supposed secular purpose can bind” a court to a statute’s “pre-eminent
purpose,”95 there is room for some comity toward coordinate branches of
government. For example, in Cammack v. Waihee,96 the Ninth Circuit
upheld the recognition of Good Friday because it fulfilled a secular
purpose, as well as having a religious purpose that may have motivated
the legislature.
3. Does Religious Motivation Trump Secular Purpose?
It would have been difficult for the sponsors of the Balanced
Treatment Act, or at least some of its supporters, to deny that their
actions were in part motivated by a concern for the religious sensibilities
of parents and students in Louisiana schools. But, does that motivation,
if mixed with otherwise acceptable secular purposes, create a poisonous
brew that will doom the constitutionality of any action based on that
motivation? A recent case might lead to that dismal conclusion.
In Freiler v. Tangipahoa Parish Board of Education,97 parents of
schoolchildren in the Tangipahoa parish sued to enjoin the reading of a
disclaimer that had been prepared by the school board.98 The board
passed a resolution in April 1994 as follows:
90
Id. at 449.
See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997)
(adopting a “moment of silence” was in service of a valid secular purpose and met the other
prongs of the Lemon test).
92 465 U.S. 668 (1984).
93 472 U.S. 38 (1985).
94 Id. at 56.
95 Church of Scientology Flag Serv. Org., v. City of Clearwater, 2 F.3d 1514, 1527
(11th Cir. 1993) (quoting Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam)).
96 932 F.2d 765 (9th Cir. 1991).
97 975 F. Supp. 819 (E.D. La. 1997).
98 Id. at 821.
91
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Whenever, in classes of elementary or high school, the
scientific theory of evolution is to be presented, whether from
textbook, workbook, pamphlet, other written material, or oral
presentation, the following statement shall be quoted
immediately before the unit of study begins as a disclaimer
from endorsement of such theory.
It is hereby recognized by the Tangipahoa Board of
Education, that the lesson to be presented, regarding the origin
of life and matter, is known as the Scientific Theory of
Evolution and should be presented to inform students of the
scientific concept and not intended to influence or dissuade the
Biblical version of Creation or any other concept.
It is further recognized by the Board of Education that it is
the basic right and privilege of each student to form his/her
own opinion or maintain beliefs taught by parents on this very
important matter of the origin of life and matter. Students are
urged to exercise critical thinking and gather all information
possible and closely examine each alternative toward forming
an opinion.99
The challenge to the disclaimer was that it violated the
Establishment Clause.100 In analyzing whether the school board’s action
had a secular purpose, under the Lemon test,101 the court noted that in
Edwards the U.S. Supreme Court had “analyzed both the official stated
purpose and the motivations behind the promulgation of the statute, as
evidenced by the discussion of the legislative sponsor and other
legislators, to determine the true purpose.”102 While the judge recognized
that “a proposed state act may be motivated in part by religion, it is
unconstitutional ‘if it is entirely motivated by a purpose to advance
religion.’”103
The district court reviewed the record of the adoption of the school
board resolution and found that the disclaimer would not advance any
interest that was not already protected by existing law.104 Moreover, the
99
Id.
Id. at 824-25.
101 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
102 Freiler, 975 F. Supp. at 826.
103 Id. at 827 (quoting Wallace v. Jaffree, 472 U.S. 38, 57 (1985)).
104 The court stated:
The School Board also stresses that the point is that the teachers advise
the students that they have the right to form their own opinions or maintain
the beliefs taught to them by parents or in Sunday School on the origin of life.
This Court can hardly conceive that students do not already have that right, or
are unaware that they have it, or conversely, in its absence, that teachers in
Tangipahoa Parish public schools teach students that they do not have the
right to believe in Divine Creation, if they so choose.
100
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judge found no secular purpose in the school board’s claim that they
were attempting to address the concerns of parents and students that
their beliefs were being disregarded.105 The judge reasoned that
[w]hat offends parents, students, and School Board members about the
teaching of evolution, and the reasons which underlay the Creation
Science proponents [in Edwards v. Aguillard], is that the teaching of
the scientific theory of evolution in public schools is not accompanied
by the theory, indeed the belief, that a Supreme Being was the
designer and creator of humankind.106
The school board appealed the trial court’s ruling, as well as the
award of $64,094 for the plaintiffs’ attorney fees.107 A three-judge panel
of the Fifth Circuit affirmed.108 While acknowledging that courts “must
exercise great ‘care and restraint’ when called upon to intervene in the
operation of public schools,”109 the panel nonetheless upheld the district
court’s ruling, as well as the award of attorney fees, although it offered a
different basis upon which to sustain the injunction. The court rejected
the trial court’s finding that school board’s justification for the
disclaimer, that it was attempting to address the sensibilities of parents
and students, was a mere sham.110 Instead, the Fifth Circuit panel found
that the purpose was a legitimate one.111 However, the panel found that
“the primary effect of the disclaimer is to protect and maintain a
particular religious viewpoint, namely belief in the Biblical version of
creation.”112 This conclusion was based upon a review of the record in the
case, which was contrary to its stated intent:
Beyond merely ‘disclaiming’ endorsement of evolution, the two
paragraph passage urges students to take action—to ‘exercise critical
thinking and gather all information possible and closely examine each
alternative’ to evolution. [citation omitted] The disclaimer, taken as a
Id. at 829.
105 Id.
106 Id.
107 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 341 (5th Cir. 1999),
reh’g denied en banc, 201 F.3d 602 (5th Cir. 2000), cert. denied, 530 U.S. 1251 (2000)
(mem.).
108 Id.
109 Id. at 342-43.
110 Id. at 344-45.
111 As well it should—the Supreme Court had noted that the mere fact of some
legislators’ motivations does not determine whether the purpose of the legislation as a
whole is secular:
Even if some legislators were motivated by a conviction that religious
speech in particular was valuable and worthy of protection, that alone
would not invalidate the Act, because what is relevant is the legislative
purpose of the statute, not the possibly religious motives of the legislators
who enacted the law.
Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 249 (1990).
112 Freiler, 185 F.3d at 346.
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whole, encourages students to read and meditate upon religion in
general and the ‘Biblical version of Creation’ in particular.113
The school board then petitioned the Fifth Circuit for a rehearing en
banc.114 That petition was denied in a per curium opinion, which
disclaimed any broad significance in the holding. In denying rehearing,
the Fifth Circuit acknowledged that it
do[es] not decide that a state-mandated statement violates the
Constitution simply because it disclaims any intent to communicate to
students that the theory of evolution is the only accepted explanation
of the origin of life, informs students of their right to follow their
religious principles, and encourages students to evaluate all
explanations of life’s origins, including those taught outside the
classroom. We decide only that under the facts and circumstances of
this case, the statement of the Tangipahoa Parish School Board is not
sufficiently neutral to prevent it from violating the Establishment
Clause.115
Unpersuaded by that reasoning, seven of the circuit judges
dissented from the denial of the petition for rehearing en banc, stating
that
this disclaimer to the disclaimer, while possibly being the balm
necessary to save this case from being reheard en banc, does far more
harm than good. For this extremely important and sensitive area of
the law and of life, it does nothing but muddy the waters even more.
(For starters, what does “not sufficiently neutral” mean?) Someone
trying to harmonize the panel’s holding about the disclaimer and its
disclaimer to the disclaimer could conclude, quite justifiably, that the
disclaimer does not pass muster because of one simple fact: it
mentions the Bible.116
The dissenters were not convinced that the disclaimer would have the
effect feared by the majority. Since the effect prong of the Lemon test
looks to the overall context in which the state’s action occurs, they found
ludicrous the notion that the school board’s action, taken as a whole,
advances religion. The dissenters noted that
[i]n examining the disclaimer’s effect, the panel erred by not
considering the context in which the disclaimer was intended to be
used. In the parish schools, evolution is taught; the “Biblical version of
Creation” is not! How can the effect of the disclaimer be to endorse or
advance a concept that is merely mentioned, using only four words,
when evolution is the only concept for the origin of life and matter that
113
Id. at 347 (citation omitted).
Freiler v. Tangipahoa Parish Bd. of Educ., 201 F.3d 602 (5th Cir. 2000) (en banc),
cert. denied, 530 U.S. 1251 (2000) (mem.).
115 Id. at 603.
116 Id. at 604 (Barksdale, J., dissenting).
114
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is included in the curriculum, the only one that will be explained and
discussed in any lesson following the disclaimer’s being read?117
Judge Barksdale concluded his dissent by observing that, despite its
professed devotion to the concept of neutrality, the court had in fact
“transformed neutrality into intolerance.”118
The final chapter of the Freiler saga was a petition to the United
States Supreme Court for a writ of certiorari. This petition was denied
without comment; however, there was a dissenting opinion by Justice
Scalia, joined by Justice Thomas.119 He first characterized the reasoning
of the Fifth Circuit—its objection to the form of the disclaimer because it
mentioned the Bible—as “absurd.”120 He concluded by summarizing the
“evolution” of the court’s jurisprudence from a position that favored open
dialogue to one that protected one form of thought from criticism.121
In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228
(1968), we invalidated a statute that forbade the teaching of evolution
in public schools; in Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct.
2573, 96 L.Ed.2d 510 (1987), we invalidated a statute that required
the teaching of creationism whenever evolution was also taught; today
we permit a Court of Appeals to push the much beloved secular legend
of the Monkey Trial one step further. We stand by in silence while a
deeply divided Fifth Circuit bars a school district from even suggesting
to students that other theories besides evolution—including, but not
limited to, the Biblical theory of creation—are worthy of their
consideration. I dissent.122
As in Edwards, one could read the Freiler case as simply a factspecific set of findings concerning a discriminatory motive on the part of
certain legislators. Returning to the analogy of a sanitation supervisor
who exercises a religious preference in hiring certain employees,123 one
could hardly draw the conclusion that disclaimers by themselves were
offensive under the Establishment Clause. In fact, it is hard to avoid the
conclusion that the Fifth Circuit’s Freiler dissent was correct in finding
no justification for striking down the action.
To take another analogy, suppose that a public school scheduled its
students to perform in a “winter holiday concert” consisting entirely of
Christmas carols. Would it be amiss if the school board asked the
superintendent to make an announcement prior to the beginning of the
concert that “the inclusion only of Christmas music is not intended to
117
Id. at 607 (Barksdale, J., dissenting).
Id. at 608 (Barksdale, J., dissenting).
119 Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251 (2000) (mem.), denying
cert. to 201 F.3d 602 (5th Cir. 2000), denying reh’g en banc to 185 F.3d 337 (5th Cir. 1999).
120 Id. at 2709 (Scalia, J., dissenting).
121 Id. (Scalia, J., dissenting).
122 Id. (Scalia, J., dissenting)
123 See supra text section accompanying note 83.
118
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influence or dissuade anyone from adhering to Judaism, Islam, or any
other religious or non-religious belief?” Would it matter that the school
board, or for that matter, the superintendent, was motivated by
antipathy toward Christianity or a fear that the students might be
touched by the appeal of the music and its message? To propose such an
objection would be to invite incredulity that the remedy for the
program’s obvious imbalance was so limited.
4. Worldview Compatibility
A final issue that needs to be addressed in determining the
constitutionality of state action is to note the way in which the scientific
views in question are either compatible or incompatible with particular
religious views. It was important for the majority in Edwards that the
theory of evolution stood in direct conflict to a particular religious
view.124 On the other hand, the Court gave no attention to the possibility
that evidence undermining the persuasiveness of Darwinism as a
scientific theory would be seen as an attack on those holding a worldview
that is materialistic.125 Just as one might be suspicious of the motives of
those who want to introduce evidence that is compatible with their own
religious viewpoints,126 the shoe can equally be put on the other foot. If
Edwards should be read, not as an endorsement of the theory of
evolution against any rivals, but rather as a protection of true academic
freedom against its not-so-cultured despisers,127 then the scrutiny of
motives should be even-handed rather than one-sided.
Compare for a moment the manner in which a history teacher
handles the period of the Protestant Reformation. Suppose there had
been a consistent pattern of teaching that the Reformers exercised good
judgment in breaking away from a church that had abandoned true
Christian doctrine and that this view was objected to by Catholic parents
or students. If a school board attempted to bring balance to this
controversial area,128 how would a court know whether it had either not
124 “The legislation therefore sought to alter the science curriculum to reflect
endorsement of a religious view that is antagonistic to the theory of evolution.” Edwards,
482 U.S. at 593.
125 See DeWolf et al., supra note 5, at 87.
126 As the Court in Edwards put it, “teaching and learning” must not “be tailored to
the principles or prohibitions of any religious sect or dogma.” Edwards, 482 U.S. at 585.
127 FRIEDRICH SCHLEIERMACHER, ON RELIGION: SPEECHES TO ITS CULTURED
DESPISERS (1799).
128 At one point in our history, this was a topic almost as heated as the debate over
how to teach about biological origins. McCollum v. Bd. of Educ., 333 U.S. 203, 236 (1948)
(Jackson, J., concurring) (“[H]ow one can teach, with satisfaction or even with justice to all
faiths, such subjects as the story of the Reformation, the Inquisition, or even the New
England effort to found ‘a Church without a Bishop and a State without a King,’ is more
than I know.”).
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gone far enough or had gone too far in accommodating the beliefs of one
set of parents or another? The fact that the advocates of one view or the
other had been successful in adjusting the curriculum to avoid conflict
with their own beliefs should not be shocking. Instead, a court
overseeing the work of a school board should ask a more useful question:
is the presentation one that retains significant bias; or to borrow from
the standard for the adequacy of jury instructions, does the presentation
permit each party to argue its theory of the case?129
To return to the hypothetical of a “winter holiday concert,” suppose
parents from Jewish or Islamic backgrounds complained that the choice
of music was biased in favor of Christians. In such a case, what test
should be used to gauge the constitutionality of the final resolution of the
dispute? Again, one could hope for a reasonably fair evaluation of the
conflicting claims, such as measuring the number of children from each
background, evaluating the degree to which the musical selection
enhances or offends a particular perspective, and so forth. It is
unrealistic to expect that the decision-making body, such as the school
administrator or the school board, would be free of personal preferences
or concerns that one group or another had been slighted and corrections
needed to be made. In summary, the Court’s treatment of religious
motivation in Edwards runs the risk of confusing specific factual
findings by the district court with a broader generalization about the
role of religious motivation in state action.
B. Avoiding Limitations on the Teaching of Evolution
Another way to read the Edwards case is to conclude that it had less
to do with what the legislature wanted taught than on the effect it might
have in preventing the teaching of evolution. In other words, if the
legislature had simply “encourage[d] the teaching of all scientific
theories about human origins,”130 it would have passed constitutional
muster. Instead, the “Balanced Treatment Act” made the teaching of
evolution conditional on the teaching of creation-science.131 Not only was
there a suggestion, perhaps even encouragement, that evolution not be
taught,132 the court found that the legislation actually favored the
teaching of creationism over evolution.133 In fairness to the Louisiana
129 Fiorito Bros. v. Fruehauf Corp., 747 F.2d 1309, 1316 (1984) (“A party is not
entitled to a jury instruction phrased exactly as it desires; rather, an instruction is proper
if it adequately allows the party to argue its theory of the case to the jury.”).
130 Edwards, 482 U.S. at 579.
131 Id. at 586.
132 The record contained a statement from one of the Act’s sponsors that he would
prefer that neither theory be taught. Id. at 587.
133 The Court stated:
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469
Legislature, it should be noted that the teaching of evolution, unlike
creation-science, was well established in the classroom and did not need
“affirmative action” to insure that it would be taught.134
Assuming that new legislation was passed, either by a state
legislature or by a local school board, that made it quite clear that the
legislature was enthusiastic about teaching evolution, but also wanted to
teach its scientific rivals, would the constitutionality of such a measure
fare any better? Perhaps it would. Given the problems, discussed above,
with the motivation of such legislation, even an “equal time” provision
might be read as being motivated by a desire to promote the religious
beliefs harmonious with one side rather than the other. Nonetheless,
there is evidence that one should favor a policy of teaching more than
just the Darwinist account as a means of promoting better science
education. For example, the ardent Darwinist William B. Provine, a
professor of ecology at Cornell University, has complained that the onesided presentation of evolution in public school science classes makes
science education incredibly dull and robs it of the interest that would
motivate students.135 A school board composed entirely of members
subscribing to Provine’s beliefs should be able to pass an “equal time”
measure that would avoid the problems of improper motivation and
discouragement of the teaching of evolution. But, even that scenario
would raise the troublesome question of whether creation-science is
really science.
C. Academic Freedom in the Definition of Science
Yet another way to read the Edwards opinion is to focus on the
content of the curriculum, not on subjective motivations of the
[T]he goal of basic “fairness” is hardly furthered by the Act’s discriminatory
preference for the teaching of creation science and against the teaching of
evolution. While requiring that curriculum guides be developed for creation
science, the Act says nothing of comparable guides for evolution. Similarly,
resource services are supplied for creation science but not for evolution. Only
“creation scientists” can serve on the panel that supplies the resource services.
The Act forbids school boards to discriminate against anyone who “chooses to
be a creation-scientist” or to teach “creationism,” but fails to protect those who
choose to teach evolution or any other non-creation science theory, or who
refuse to teach creation science.
Id. at 588 (citations omitted).
134 The National Association of Biology Teachers, which has continuously lobbied for
the teaching of an exclusively naturalistic approach to teaching the origins controversy was
quite active in opposing the Louisiana legislation and in litigating to have it struck down.
See EDWARD J. LARSON, TRIAL AND ERROR: THE AMERICAN CONTROVERSY OVER CREATION
AND EVOLUTION 137 (1989); DeWolf et al., supra note 5, at 44 n.15.
135 William B. Provine, Teaching About Evolution and The Nature of Science: A
Review, National Academy of Sciences, at http://fp.bio.utk.edu/darwin/NAS_guidebook
/provine_1.html (last modified Jan. 10, 2001).
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legislators. Although the Louisiana Legislature attempted to cast the
conflict as one between “evolution-science” and “creation-science,” the
Supreme Court seemed satisfied with the survey results of school
superintendents in Louisiana, in which 75 percent of those surveyed
stated that they understood “creation-science” to be a religious
doctrine.136 The majority in Edwards appeared almost indifferent to the
question of whether “creation science” was a form of science (albeit one
that was used as a vehicle for promoting a religious view), or whether it
was simply a religious doctrine.137 In one sense, of course, it was
unnecessary for the Court to decide the issue. Even if creation-science is
really science, and could otherwise be validly taught, a statute requiring
that it be taught could violate the Establishment Clause if a
discriminatory motivation could be demonstrated.138 On the other hand,
if the Court’s objection to motivation and the teaching of evolution were
obviated by a different procedural posture, then it would become critical
to decide if creation-science is really science at all.
1. The Demarcation Issue
Five years before Edwards, in a case cited by the Edwards
majority,139 a federal district court ruled that a similar Arkansas statute
requiring the teaching of “creation-science” was unconstitutional.140
Judge Overton based his conclusion on a “demarcation” between science
and non-science, holding that evolution was science, but creation-science
was not.141 In making this determination, Judge Overton relied upon the
136
Edwards, 482 U.S. at 596 n.18.
It is true that, at the end of the majority opinion, the court summarizes its
opinion by stating, “The Louisiana Creationism Act advances a religious doctrine by
requiring either the banishment of the theory of evolution from public school classrooms or
the presentation of a religious viewpoint that rejects evolution in its entirety.” Id. at 596.
Despite the careful distinction between the religious views it supported and creationscience itself, this characterization of creation-science as “a religious viewpoint” might be
viewed as a statement that in fact it was a religious doctrine. Many readers have reached
this conclusion. See supra note 80. But such reductionism does not do justice to the opinion.
If the Court were basing its opinion on a finding that creation-science was merely a
religious belief, it could have said so in a much shorter compass, and could have avoided all
of the other analysis of academic freedom and the legislature’s purpose. Instead, it makes
more sense to view this phrase, “religious viewpoint” as merely a shorthand summary for
the longer and more careful analysis of the constitutionality of the Balanced Treatment
Act.
138 See supra text accompanying note 53.
139 Edwards, 482 U.S. at 590 n.9.
140 McLean v. Arkansas Bd. of Ed., 529 F. Supp. 1255, 1272 (E.D. Ark. 1982).
141 Id. at 1267-72. The court’s language was unambiguous: Section 4(a) [of the
Arkansas law] lacks legitimate educational value because “creation science” as defined in
that section is simply not science. Id. See generally Robert M. Gordon, McLean v. Arkansas
137
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expert testimony of the Darwinian philosopher of science Michael
Ruse.142 In his expert testimony, Ruse asserted a five-point definition of
science that provided a normative criterion to determine whether a
theory qualifies as scientific.143 According to Ruse, for a theory to be
scientific, it must be: (1) guided by natural law; (2) explanatory by
natural law; (3) testable against the empirical world; (4) tentative; and
(5) falsifiable.144 Any theory, according to Ruse, which failed to meet
these five criteria could not be considered to be scientific.145
Philosophers of science, including Ruse himself,146 have
acknowledged that attempts at demarcation such as this are deeply
flawed.147 However, the effort to distinguish science from non-science has
critical implications for the constitutionality of efforts to introduce
competitors to Darwinism in the public school biology classroom. Since
the Supreme Court expressly acknowledged in its opinion that a
legislature might legitimately “teach[] a variety of scientific theories
about the origins of humankind to schoolchildren . . . with the clear
secular intent of enhancing the effectiveness of science instruction,”148 it
must have had in mind that there would be scientific theories other than
Darwinism that might be introduced. Yet, despite calling it “creationscience,” the legislature was unable to convince the Court that this was
indeed a scientific theory.149 Based on Edwards, what might qualify as a
scientific theory?
Board of Education: Finding the Science in “Creation Science,” 77 NW. U. L. REV. 374
(1982).
142 Id. at 1267.
143 Id. at 1267-72.
144 Id.
145 Id. In the court’s words, these five points are the “essential characteristics of
science.” Id. at 1267.
146 Ruse later admitted:
Evolution is promoted by its practitioners as more than mere science.
Evolution is promulgated as an ideology, a secular religion—a full-fledged
alternative to Christianity, with meaning and morality. I am an ardent
evolutionist and an ex-Christian, but I must admit that in this one
complaint—and Mr. Gish [a promoter of creation-science] is but one of
many to make it—the literalists are absolutely right. Evolution is a
religion. This was true of evolution in the beginning, and it is true of
evolution still today.
Michael Ruse, How evolution became a religion: Creationists correct?, NAT’L POST, May 13,
2000, available at 2000 WL 20311123.
147 See generally DeWolf et al., supra note 5, at 68-73.
148 Edwards, 482 U.S. at 594.
149 To take a more narrow approach, it might be possible to confine the Edwards
case to its facts in view of the Court’s observation that, instead of presenting only one
theory that was in conflict with Darwinism, a legislature desiring “to maximize the
comprehensiveness and effectiveness of science instruction . . . would have encouraged the
teaching of all scientific theories about the origins of humankind.” Id. at 588.
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2. A Non-Biblical Approach
One might find fault with creation-science because it adheres so
faithfully to the account of creation in the Book of Genesis. Most
adherents to creation-science start with the hypothesis that the account
in Genesis is true and then look for evidence that is consistent with it.
This does not demonstrate that the theory is a priori false or that it is
unscientific, but it presents a more circumscribed approach to the
scientific enterprise. Moreover, most advocates of creation-science
acknowledge that they have made a personal faith commitment to the
literal truth of the Genesis account. Thus, their ability to pursue the
question of biological origins may be challenged based on their
passionate commitment to a particular answer to that question. On the
other hand, the fact that a particular scientist works for a
pharmaceutical company and has a strong predisposition to reach (or
avoid) certain conclusions about the effects of a drug manufactured by
her employer does not prevent her from conducting scientific research on
that topic, even though one is entitled to be skeptical of any scientific
claims based on her research.
Even if many critics of creation-science are willing to acknowledge
that, at least for some purposes, it is science (albeit bad, even
“dreadful”150 science),151 the case for its constitutionality is hampered by
a perception that it does not approach the origins question with an open
mind. If this were the critical difference between creation-science and
the kind of “scientific theory” which the Edwards majority thought
appropriate for the curriculum, then it is easy to identify a theory that
fits the bill: one that posits actual design as the source of biological life.
Even Darwinists concede that the essence of biological life is the
appearance of design.152 If Darwin’s theory was an attempt to define how
the appearance of design could have been accomplished without actual
design,153 then the logical competitor from a scientific standpoint to
150 Philip L. Quinn, Creation, Methodology, and Politics, in BUT IS IT SCIENCE? 39596 (Michael Ruse ed., 1988).
151 Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE
L.J. 1535, 1628 (1998).
152 “Biology is the study of complicated things that give the appearance of having
been designed for a purpose.” RICHARD DAWKINS, THE BLIND WATCHMAKER: WHY THE
EVIDENCE OF EVOLUTION REVEALS A UNIVERSE WITHOUT DESIGN 1 (1987). Francis Crick,
Nobel laureate and co-discoverer of the structure of DNA, went so far as to warn,
“Biologists must constantly keep in mind that what they see was not designed, but rather
evolved.” FRANCIS CRICK, WHAT MAD PURSUIT 138 (1988).
153 As one scholar on the subject expressed it,
The fact of evolution was not generally accepted until a theory had been put
forward to suggest how evolution had occurred, and in particular how
organisms could become adapted to their environment; in the absence of
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Darwinism would be a theory whose hypothesis is that life on earth is
the result of actual, not just apparent, design.154
3. A Majoritarian Approach
The least defensible approach to deciding whether a particular
theory is scientific is to suggest that a theory must acquire a certain
standing in the scientific community before it can be considered
scientific155 or to rely on a poll as the majority in Edwards seemed
content to do.156 If academic freedom is to mean anything, it must defend
minority viewpoints from the complaint that they have not been adopted
by the majority.157 Indeed, even the critics of creation-science have
acknowledged, particularly in light of the Supreme Court’s decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,158 that science must be
open to dissenting viewpoints.159
such a theory, adaptation suggested design, and so implied a creator. It was
this need which Darwin’s theory of natural selection satisfied.
JOHN MAYNARD SMITH, THE THEORY OF EVOLUTION 30-31 (1975), quoted in DeWolf et al.,
supra note 5, at 49 n.35.
154 See generally, DeWolf et al., supra note 5, at 59.
155 Eugenie C. Scott, Keep Science Free from Creationism, INSIGHT, February 21,
1994, at 29; Hearing Before the United States Commission on Civil Rights in Seattle,
Washington, (Aug. 21, 1998), available at http://www.arn.org/docs/meyer/sm_uscom.htm.
156 Edwards, 482 U.S. at 596, n.18; see supra text accompanying note 136.
157 “If there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to confess by word or act their faith therein.” West
Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J., concurring).
158 509 U.S. 579, 597 (1993) (“Scientific conclusions are subject to perpetual revision.
. . . The scientific project is advanced by broad and wide-ranging consideration of a
multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and
that in itself is an advance.”).
159 Wexler, supra note 83, at 466 (citations omitted).
[O]ther philosophers of science have replaced categorical approaches to
defining science with attempts to identify the criteria that make certain
theories more persuasive and helpful than others. Even the Supreme Court
seemed to adopt this approach in Daubert v. Merrell Dow Pharmaceuticals, Inc.
[509 U.S. 579 (1993)] where it replaced a bright-line “general acceptance” test
for the admission of scientific expert testimony with a series of general factors
for courts to consider in determining whether a particular theory is
scientifically valid. Courts should continue to follow the philosophers on this
point and realize that characterizing a theory as scientific in some sense says
nothing about whether it might also be religious or whether teaching it might
endorse a religious viewpoint in violation of the Establishment Clause.
Id.
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IV. THE FIRST AMENDMENT RIGHTS OF TEACHERS
The question posed by this article is what has become of academic
freedom after Edwards v. Aguillard. Although many might quarrel with
the Supreme Court’s finding in Edwards that the Balanced Treatment
Act did not advance academic freedom and that it was not intended to
accomplish that goal, the good news is that the Court affirmed that
teachers and students do enjoy academic freedom by acknowledging that
“[t]he Act does not grant teachers a flexibility that they did not already
possess to supplant the present science curriculum with the presentation
of theories, besides evolution, about the origin of life.”160 In an ironic
twist, the Court criticized the legislation, not because its stated object
was illicit but because that object was not being served by the method
used to achieve it. Again, regarding the question of whether the
legislation was non-discriminatory (by insuring that a balanced
viewpoint was presented) or discriminatory (because it emphasizes
creation-science to the detriment of evolution), the argument is not over
the goal but the means toward the goal.
The statement just quoted above is actually quite remarkable. In
fact, it is hard to take it seriously given a subsequent comment by the
Court in a footnote that “in the State of Louisiana, courses in public
schools are prescribed by the State Board of Education and teachers are
not free, absent permission, to teach courses different from what is
required.”161 One could harmonize these two statements by suggesting
that, while a teacher is not free to teach a different course or to teach
topics other than those prescribed in the curriculum, a teacher does have
academic freedom to decide what he or she will say on the merits of the
topic assigned to him or her. However, there is a genuine question that
still remains after reading Edwards: if a teacher believed that more
effective science education162 would require introduction of a theory of
origins that directly contradicted the theory of evolution, would such a
teacher enjoy academic freedom to present such material? As a practical
matter, it is quite likely that any teacher who actually asserted the
freedom to teach an alternate theory would be told that he or she was
departing from the prescribed curriculum and would therefore be unable
to exercise such judgment.163 What would a court, attempting to follow
160
Edwards, 482 U.S. at 587.
Id. at 586.
162 “The Act actually serves to diminish academic freedom by removing the flexibility
to teach evolution without also teaching creation science, even if teachers determine that
such curriculum results in less effective and comprehensive science instruction.” Id. at 586.
163 A school administrator might do so for a variety of reasons. Most school
administrators have been steeped in the culture that accepts the theory of evolution as the
only scientific theory worth presenting. See, e.g., Statement on Teaching Evolution,
National Association of Biology Teachers, at http://www.nabt.org/evolution.html. (last
161
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Edwards, say about academic freedom in such a case? We have no direct
answer, but we have some cases that will shed varying amounts of light
on the subject.
A. The Wrong Approach: Refusing to Teach Evolution
It is clear that one acting under the guise of academic freedom may
not change the topic or refuse to cover it based upon disagreement with
views that would naturally arise from a presentation of that subject.
This was the fate of John Peloza, a biology teacher in California who
objected to teaching evolution.164 He considered “evolutionism” to be a
religion and therefore claimed a First Amendment right not to teach
it.165 The district court found otherwise, and dismissed his complaint.166
On appeal, the Ninth Circuit agreed, stating that “[t]he Supreme Court
has held unequivocally that while the belief in a divine creator of the
universe is a religious belief, the scientific theory that higher forms of
life evolved from lower forms is not.”167
Of course, Peloza is not a useful guide to the teacher who wants to
teach more, rather than less, about evolution. However, the Ninth
Circuit was not particularly helpful in distinguishing the potential for
any theory about origins to be presented in a dogmatic rather than
scientific fashion. Given the admission by authoritative Darwinists such
as Michael Ruse that “evolutionism” can act as a religious belief,168 it is
inappropriate for the Ninth Circuit to treat the question so dismissively.
It should have told Mr. Peloza, “No, you can’t refuse to teach the theory
of evolution to your students. But you enjoy academic freedom to present
the evidence on both sides of the question of whether evolution
adequately explains the origin and development of life.” Peloza
complained that he was being asked to teach evolution as a fact.169 The
court regarded this as an unimportant question, as though he were being
required to teach (as a fact) that the rise of labor unions had a positive
visited Mar. 30, 2001) (“Modern biologists constantly study, ponder and deliberate the
patterns, mechanisms and pace of evolution, but they do not debate evolution’s
occurrence.”). Even those administrators who would like to take a more open-minded
approach are fearful of the wrath of the ACLU and other advocacy groups that have been
active in suing school districts wherever they believe that the theory of evolution is under
fire. See John Gibeaut, Evolution of a Controversy, 85 A.B.A. J. 50 (Nov. 1999). It is
noteworthy that the school district in Freiler that had the temerity to require a disclaimer
be read to biology classes wound up being forced to pay the plaintiffs’ attorneys fees of
$64,094. Freiler, 185 F.3d at 337.
164 Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 519 (9th Cir. 1994).
165 Id.
166 Id. at 521.
167 Id.
168 See supra text accompanying note 146.
169 Peloza, 37 F.3d at 520.
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effect on American society. Even the most zealous advocate of academic
freedom would have to concede that a teacher may personally disagree
with this assertion and may be free to present views critical of labor
unions. However, he cannot claim a First Amendment right not to teach
something that is prescribed in the curriculum as a valid topic for public
school education.
Unfortunately, the Ninth Circuit did not rest its opinion on this
distinction. It quoted the district court’s findings that evolution “is an
established scientific theory which is used as the basis for many areas of
science. As scientific methods advance and become more accurate, the
scientific community will revise the accepted theory to a more accurate
explanation of life’s origins.”170 This quotation suggests that Peloza was
wrong to refuse to teach evolution, not because it was a valid topic for
discussion but because he had no basis for dissenting from it. If academic
freedom is to be meaningful, it must include the teacher’s right to hold
and express views that are contrary to the prevailing orthodoxy.171 A
teacher who is disciplined for expressing views falling within a protected
First Amendment right to academic freedom is entitled to judicial
redress.172
B. The Wrong Approach Again: Usurping Curricular Choice
A second approach that is doomed to failure is for the teacher to
attempt to substitute judgment about the curriculum, rather than how
the curriculum is presented. In Boring v. Buncombe County Board of
Education173 the plaintiff, Margaret Boring, was a high school drama
teacher who was involuntarily transferred based on her failure to comply
with the district’s “controversial materials policy.”174 She had chosen a
play entitled “Independence,” which, as she claimed in her complaint,
170
Id. at 521-22.
As the Supreme Court has observed,
Our Nation is deeply committed to safeguarding academic freedom, which
is of transcendent value to all of us and not merely to the teachers concerned.
That freedom is therefore a special concern of the First Amendment, which
does not tolerate laws that cast a pall of orthodoxy over the classroom.
Keyishian v. Bd. of Regents of Univ. of New York, 385 U.S. 589, 603 (1967); see also Bd. of
Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 870-71 (1982) (denying
school board the right to remove books from the library simply because they wanted to
deny access to ideas with which they disagreed).
172 Watson v. Eagle County Sch. Dist., 797 P.2d 768 (Colo. App. 1990) (holding that
trial court erroneously dismissed claim of non-tenured teacher, whose contract allegedly
was not renewed in retaliation for critical comments made in a student newspaper).
173 136 F.3d 364 (4th Cir. 1998).
174 See generally Kara Lynn Grice, Striking an Unequal Balance: The Fourth Circuit
Holds That Public School Teachers Do Not Have First Amendment Rights to Set Curricula
in Boring v. Buncombe County Board of Education, 77 N.C. L. REV. 1960 (1999).
171
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“powerfully depicts the dynamics within a dysfunctional, single-parent
family—a divorced mother and three daughters; one a lesbian, another
pregnant with an illegitimate child.”175 Boring claimed that the school
district’s decision to transfer her violated her First Amendment rights,
but the school district countered that it was exercising legitimate
curricular control by disapproving of the choice of the play as suitable
material for the students.176 The district court dismissed the complaint,
and the Fourth Circuit affirmed, finding that the choice of the play fell
within the realm of choosing curriculum, which the school
administrators could legitimately control.177 The Fourth Circuit stated
that
[s]omeone must fix the curriculum of any school, public or private. In
the case of a public school, in our opinion, it is far better public policy,
absent a valid statutory directive on the subject, that the makeup of
the curriculum be entrusted to the local school authorities who are in
some sense responsible, rather than to the teachers, who would be
responsible only to the judges, had they a First Amendment right to
participate in the makeup of the curriculum.178
C. The Right Approach: Teaching the Controversy
If a teacher cannot refuse to teach a particular point of view, and if
the teacher also has only delegated authority over the selection of the
curriculum, then what freedom does the teacher have? The best case to
be made for a teacher’s academic freedom is where the teacher is
addressing a subject that is clearly within the topics assigned for
coverage in that class. I have argued elsewhere179 that a teacher is on
solid ground where he or she is expected to teach the origins question
and does so by treating it as a scientific controversy, presenting students
with an accurate description of the evidence and scientific opinion
favoring as well as opposing Darwin’s theory of natural selection.180
There are compelling arguments to be made for the academic freedom of
teachers who wish to exercise their freedom in this way.
175
136 F.3d at 366.
Id.
177 Id.
178 Id. at 371.
179 See generally DeWolf et al., supra note 5.
180 See also David K. DeWolf et al., TEACHING THE CONTROVERSY: DARWINISM,
DESIGN AND THE PUBLIC SCHOOL SCIENCE CURRICULUM (1999), available at http://law.
gonzaga.edu/people/dewolf/fte2.htm.
176
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1. The Teacher’s Right To Correct Misinformation
The teacher’s First Amendment claims are most compelling where
the teacher is acting to correct misinformation that is contained in a
textbook or other curricular materials. While the teacher cannot refuse
to present a point of view with which he or she disagrees,181 the teacher
cannot be forced in effect to express agreement with a proposition that
he or she believes to be untrue. If a public school student cannot be
forced to recite the flag salute,182 a public school biology teacher cannot
be forced to acknowledge that evolution is a fact. The Peloza case should
not be read to suggest that teachers may not dissent from the theory of
evolution but that students are entitled to be taught about the theory of
evolution, whether an individual teacher finds it persuasive or not.
The evidence is growing that most high school biology textbooks
contain serious errors in presenting the case for Darwinism. A book
recently published by Jonathan Wells describes the “icons” that are
usually taught as evidence of evolution: peppered moths, Haeckel’s
embryos, and so on.183 These “icons” linger in the popular imagination
but turn out to be unreliable to the point of being fraudulent.184 A biology
teacher should enjoy academic freedom to call this research to the
students’ attention. Again, the teacher has no right to substitute a
different curriculum for the one prescribed by the school board or by his
or her superiors, but there is an important distinction between the
curriculum and a viewpoint about the curriculum. The school board or
the school administration can control the former, but they cannot dictate
the latter.
2. The Teacher’s Right To Offer Additional Relevant Information
The teacher still enjoys some academic freedom to augment the
existing curricular material with relevant information. However, there is
a limit to how far the teacher can go in adding new material before it
results in a curricular change. As bad as high school biology textbooks
may be in teaching the origins controversy, they provide a relatively
stable path for the teacher to follow in covering the topic within the time
allowed. While the Supreme Court in Edwards takes for granted that a
teacher could “supplant the present science curriculum with the
181
Peloza, 37 F.3d at 522.
See Barnette, 319 U.S. at 642.
183 See JONATHAN WELLS, ICONS OF EVOLUTION (2000); see also www.
iconsofevolution.com. Wells holds a Ph.D. in embryology from the University of California
at Berkeley.
184 Id. (As Wells’s subtitle expresses it, “Science or Myth? Why much of what we
teach about evolution is wrong.”).
182
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presentation of theories, besides evolution, about the origin of life,”185
this right in practice would need to be balanced with the need to fulfill
the curricular expectations for coverage in other areas. For example, a
biology teacher might be intrigued with the “Cambrian explosion,”186
which contradicts Darwinist expectations that new phyla or body plans
will develop over extended periods of time.187 Such information might be
directly relevant to the question of whether Darwinism provides a
satisfactory answer to the question of how the new information required
to assemble complex new body plans could have been generated by a
process of random mutation and natural selection. However, a teacher’s
choice in such an area would not be completely free of administrative
review. If a teacher spent three months on a topic that is normally
accorded two days’ coverage, the addition of new material could effect a
curricular change. In other words, practical considerations limit the
teacher’s academic freedom to insure that the curricular goals have not
been replaced by goals of the teacher’s own choosing.
It should be emphasized that the teacher’s choice of information
that is directly contrary to Darwinian theory is not by itself
objectionable. In fact, it is not part of the curriculum to insure that
students accept or believe a particular theory. Thus, the presentation of
evidence that leads students to question Darwinism as a theory is not a
ground for claiming that the curriculum is being altered, as long as the
students are achieving the goal of understanding Darwinism. The
Supreme Court has been emphatic in noting that in public schools, the
suppression of ideas based upon a disagreement with the ideas
themselves is a violation of the First Amendment.188 Rejecting a claim by
a school board that it had the right to remove books from the school
library based upon their offensive character, the Court stated that the
[p]etitioners [the school board] rightly possess significant discretion to
determine the content of their school libraries. But that discretion may
not be exercised in a narrowly partisan or political manner. If a
Democratic school board, motivated by party affiliation, ordered the
removal of all books written by or in favor of Republicans, few would
doubt that the order violated the constitutional rights of the students
denied access to those books. The same conclusion would surely apply
if an all-white school board, motivated by racial animus, decided to
remove all books authored by blacks or advocating racial equality and
integration. Our Constitution does not permit the official suppression
of ideas. Thus whether petitioners’ removal of books from their school
libraries denied respondents their First Amendment rights depends
185
Edwards, 482 U.S. at 587, see supra text accompanying note 160.
J. Madeleine Nash, When Life Exploded, TIME, Dec. 4, 1995, at 66, available at
1995 WL 9022239.
187 See generally DeWolf et al. supra note 5, at 64.
188 Pico v. United States, 457 U.S. 853 (1982).
186
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upon the motivation behind petitioners’ actions. If petitioners intended
by their removal decision to deny respondents access to ideas with
which petitioners disagreed, and if this intent was the decisive factor
in [the school board’s] decision, then petitioners have exercised their
discretion in violation of the Constitution. To permit such intentions to
control official actions would be to encourage the precise sort of
officially prescribed orthodoxy unequivocally condemned in
Barnette.189
3. The Presentation of Theories Competing with Darwinism
The most controversial case would be a teacher’s proposal to teach
theories that directly compete with Darwinism. Here even more delicate
balancing is necessary. As noted above, Darwinists attempt to explain
the appearance of design through purely naturalistic forces.190 If
students are free to study the evidence suggesting that the Darwinist
case is unpersuasive, they should be free to entertain and be told about
competing scientific theories that support an inference of actual
design.191 On the other hand, the inference of an actual designer as the
source of complexity and the appearance of design in living things could
easily lead a student to connect that inference to existing religious
beliefs that include a supernatural Creator. The potential for the class to
generate debates about religious or metaphysical beliefs would naturally
be a topic of concern for school administrators who would like the biology
class to focus on mastering scientific concepts.
The likelihood that students will be led to draw metaphysical
implications from study of particular scientific materials does not by
itself render this study outside the proper realm of science. After all, one
of the basic theories of cosmology today is the theory that an event
known as the “Big Bang” brought into being time, space, matter and
energy, and that whatever “caused” the Big Bang is not something
capable of examination through normal laws of cause and effect.192 If
many physicists believe that this theory is the best explanation for the
cosmological phenomena we now observe, should physics teachers
hesitate to discuss it because it might lead some students to point to the
metaphysical implications of such an event?
Moreover, a cursory examination of most high school biology
textbooks will show that there is no shortage of efforts to make biology
“relevant” to issues of ethics, environmental policy, and politics.193 Thus,
189
Id. at 870-71.
See DAWKINS, supra note 152, at 1.
191 See WILLIAM A. DEMBSKI, THE DESIGN INFERENCE passim (1998).
192 On Beginnings, 23 OKLA. CITY U. L. REV. 787, 816 (1998).
193 KENNETH MILLER & JOSEPH LEVINE, BIOLOGY 1077 (1998). The following
quotation is found in a sidebar entitled “From the Authors”:
190
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it is hardly a valid objection to the consideration of alternate theories
about biological origins that students might see the connection between
biology and other questions important to them. Nonetheless, a sound
approach to this area would discourage students from extended
discussions of metaphysics or politics that would not help to illuminate
the central scientific questions.
V. CONCLUSION
Edwards v. Aguillard created more questions about academic
freedom than it answered. While affirming the value of academic
freedom, it treated the legislature’s attempt to promote academic
freedom with a puzzling inconsistency. Subsequent case law has neither
repudiated nor explained the Supreme Court’s approach to academic
freedom. Relying on their right to resist attempts to indoctrinate, rather
than educate, and mindful of their responsibility to consider scientific
issues on the basis of evidence, public school biology teachers should feel
confident that if they “teach the controversy” about biological origins
they will ultimately succeed.
My auto insurance bill arrived last week, and it made me angry—I resented
having to pay so much. I also resented the fact that I am legally required to pay
for auto insurance. But I got over it, and I sent off the necessary check. Why am
I mentioning insurance in the ecology unit? Because life is full of surprises,
pleasant and unpleasant. And, in the face of surprises, it is good to have
insurance. Each of us makes decisions about “insurance” all the time. Looking
at a cloudy sky, you wonder whether the risk of getting wet is worth the bother
of carrying an umbrella. More serious kinds of insurance protect us against the
cost of accidents or illness. All forms of insurance cost money that we could use
to buy other things that we need or want, and there is no way to predict the
future. So buying insurance can feel like betting against yourself, taking odds
that you will get into an accident or get sick. And some kinds of insurance, such
as car insurance, are required by law to protect everyone. Now, let’s come back
to ecology. Laws that safeguard the environment are like required insurance
policies that protect us against ecological risks such as unsafe drinking water,
polluted air, or human-caused changes in climate. Like auto insurance, these
laws require us to spend money that we would rather use for other things. But
that money is invested in maintaining the health of the biological and
geological systems that keep our planet—including humans—alive.
As this unit has shown, there is a great deal we do not yet know about [our]
complex ecological system less about the effects that an activity may have on
them. As a father, I am more concerned about global warming than I am about
whether a driver is going to jump a red light and dent my fender. So, I support
laws that protect the environment. And I will pay my part of our global
ecological insurance policy. When your turn comes, will you?
Id.